Mcdonald v. Fithian

• Decision Date: 31 December 1844
• Citation: 6 Ill. 269,1 Gilman 269,1844 WL 4074
• Parties: ALEXANDER MCDONALDv.WILLIAM FITHIAN et al.
• Court: Illinois Supreme Court

1 Gilman 269

6 Ill. 269

1844 WL 4074 (Ill.)

ALEXANDER MCDONALD

v.WILLIAM FITHIAN et al.

Supreme Court of Illinois.

December Term, 1844.

BILL IN CHANCERY for relief, and injunction, etc., before the Hon. WILLIAM WILSON, October term, 1843. Injunction dissolved, and bill dismissed.

The original bill represents, that some time in the month of March, 1836, one Isaac R. Moores, of the county of Vermillion, as the agent of complainant, together with one James P. Murphy, as the agent of one John H. Murphy, of the said county, and one Hezekiah Cunningham, also of said county, in his own right and behalf, and also with one William Fithian, of same county, in his own right and behalf, went to Milwaukie (W. T.), for the purpose of purchasing lands or lots in that place; and after arriving there, the said Fithian made a proposition to act for the company; that is to say, for complainant and said J. H. Murphy and H. Cunningham, as the agent to contract with and purchase from one Solomon Juneau, of the said town of Milwaukie (W. T.), four acres of land situate in said town, and suggested to said Cunningham, and to the said agents of said J. H. Murphy and said complainants, that as he, said Fithian, had had dealings with said Juneau, he might do better than said Cunningham, and the said agents of J. H. Murphy and said complainant could do for themselves; and that the said Fithian engaged and promised, if the said Cunningham and the said agents would so appoint him agent as aforesaid, that he, said Fithian, would proceed to contract and make such terms with the said Juneau as would comport with the mutual, equal and best interests of himself (and as the agent of complainant, J. H. Murphy, and Cunningham), and of them, the said complainant, J. H. Murphy, and Cunningham, for the said four acres.

It further states, that after hearing the said proposition and agreements of Fithian, the said agents and Cunningham, relying on the representations of said Fithian, and upon his faithful and conscientious fulfilment of his said agency, consented to his, said Fithian's acting as their mutual agent, and for himself and for the common and equal benefit of himself, this complainant and said Cunningham and J. H. Murphy, for the purchase from said Juneau of four acres as aforesaid, and with the express and mutually recognized agreement and understanding on the part of the said four parties, that, after the purchase of said four acres from said Juneau by said Fithian, after the manner of the aforesaid proposition and assurances of the said Fithian, each of the said parties should have and take one acre of said land; that is to say, that he, the said Fithian, should have one acre, and this complainant, J. H. Murphy, and Cunningham one acre each, and they, the three last named, to pay one equal part or proportion of the amount which he, said Fithian, having bargained with said Juneau for the reciprocal advantage of the four described parties interested, should contract and give for said lots.

This agreement being made, the said Fithian proceeded to treat with Juneau for said four acres; the other three parties, J. H. Murphy, Cunningham, and this complainant, taking no part whatever in the conversation and negotiation with said Juneau for said lots; but in conformity with the foregoing agreement, leaving the treaty wholly to said Fithian. After said Fithian and Juneau had conversed apart from said Cunningham and the agents of said J. H. Murphy and this complainant, they came together in the presence of said Cunningham and said agents, and many others, when and where said Fithian observed as follows, or to the same effect: “Now, Mr. Juneau, say what is the least you will take for this property,” meaning the said four acres; to which Juneau replied, “not one d_____d cent less than three thousand dollars per acre.” That then said Juneau and Fithian retired to the house of Juneau, and the next intelligence received by said Cunningham and said agent of J. H. Murphy and this complainant from said Fithian was, that the trade was made, and at that price; that is to say, at $3000 per acre for said land. Immediately thereafter the writings were ready, said Fithian telling said Cunningham and said agents that Juneau preferred taking his, said Fithian's notes for the whole four acres, each of the others giving their notes to him, Fithian, for one acre each; which was ageed to by said Cunningham and said agents; and J. P. Murphy was called into Juneau's house, and requested by said Fithian to witness the writings given by said Fithian to said Juneau, the said Cunningham and said agents being out of the house and seeing nothing of said writings.

The complainant also states, that by the agreement on all hands, the said trade was to be kept secret, and the terms not to be known except to those concerned; that, agreeably to the trade, as said Fithian informed said Cunningham and the agents of the complainant, and said J. H. Murphy, one-fourth of the purchase money was to be paid down, and the balance to be divided into three equal payments of six, twelve, and eighteen months, making his, Fithian's, notes to Juneau $3000 each, the whole four acres amounting by the contract, as Fithian represented to said Cunningham and said agents, to the sum of $12,000; that then said Fithian required of said Cunningham and said agents to furnish him with their quota of cash payments respectively, saying that he had to pay Juneau one-fourth of the twelve thousand dollars down, according to the contract, which said Cunningham and said agents forthwith complied with, by paying each of them the sum of seven hundred and fifty dollars into the hands of said Fithian, except, perhaps, $200, which the agent of the complainant fell short of that sum, and which said Fithian agreed to advance, and wait till said agent returned to Danville, and which deficit was promptly paid to said Fithian by said agent or complainant upon their return to Danville; and except some similar deficit on the part of said J. H. Murphy and Cunningham, which was also adjusted readily, in the same way; said Fithian being very willing to supply the deficiency. Upon the return of said Fithian, Cunningham, and agents to Danville, to wit, in the month of April, 1836, this complainant, as well as said J. H. Murphy and Cunningham, executed and delivered to said Fithian, his three several bonds for the balance of the $3000, one of which he has since paid and taken up. Upon the said two other bonds made the 15th of April, 1836, one payable on or before the 4th of April, 1837, and the other payable on the 4th of October, 1837, each for the sum of $750, upon which suit was instituted and judgment obtained by said Fithian, in the Vermillion circuit court, at the May term, 1841, for the sum of $1500, and $349 damages.

The bill also alleges, that some two or three months after the purchase of the lots aforesaid, the said Fithian went to Milwaukie as he admitted; and after his return, he remarked “that he had been to Milwaukie and had settled the bond he held on Juneau, and had got of Juneau six thousand dollars (or something upwards of that amount), in his own notes which Juneau held on him;” that at this time, Fithian brought deeds from said Juneau for the said four acres, and was distinctly understood to say that he had paid Juneau for the four acres aforesaid with the said title bond which he, Fithian, held on Juneau at the time of the purchase of said land, and that said Fithian admitted at a subsequent period, “that he got his acre, meaning one of the four above described acres, on account of holding this same bond over him, Juneau, at the time the acres were bought;” and, also, at the same time, “that the bond was not named in the trade for the four acres, but that he, Fithian, from some remark which Juneau made, understood him, Juneau, to have referred to the bond in the trade.” And again, at a more recent period, “that he, the said Fithian, drew two sets of notes to Juneau, intending to present to J. P. Murphy as a witness the larger notes” (which corresponded with the amount he represented to have given), and other smaller notes (for the amount he did give), and which smaller notes were not intended to be exposed to view, but that through mistake, being confused, the smaller ones were presented to J. P. Murphy, which were as he, meaning J. P. Murphy, states, for something over $2000; that said Fithian never would admit how much more than $2000 said small notes were drawn for.

The bill also alleges that at some time since the land was purchased and after the said notes were given by this complainant and the others, the said Fithian, in reply to J. P. Murphy, the witness to said notes given by Fithian to Juneau, said, “that he had made an arrangement in some way for a part, and had paid a greater portion in hand than was the bargain;” and attempted to explain how much he paid, but said J. P. Murphy could not perceive how his account could correspond with the contract and whole transaction as said Fithian had represented them.

The bill states that the said bond which Fithian admits he gave to Juneau in exchange for the six thousand dollars “or upwards” of his notes held by Juneau, and which was in fact all said Fithian ever gave Juneau, if any thing, for the said four acres, was a title bond executed by said Juneau some time in August, 1835, stipulating to convey to said Fithian a lot of land purchased by said Fithian of Juneau at $500. The said bond acknowledged the receipt of $10,000 of said Fithian, and contained a covenant to convey said lot under a penalty of $20,000.

The bill then charges, in the alternative, that said Fithian, for the purpose of obtaining one acre of said four for nothing, colluded with said Juneau, as the confidential agent of his own seeking, of the complainant and the other principals, and for his own gain agreed that they should pay Juneau the enormous price of $3000...